Bruce Lehrmann lost his defamation case. So what happens now?

This story discusses sexual assault.

In a landmark decision on Monday, Justice Michael Lee found it probable that Bruce Lehrmann raped Brittany Higgins.

Lehrmann lost his defamation case against Network Ten and Lisa Wilkinson, after Justice Lee found the media parties had established on the balance of probabilities that Lehrmann raped Higgins in Parliament House in March 2019.

Lehrmann was suing based on the now infamous February 2021 interview on The Project in which former Liberal staffer Brittany Higgins alleged she was sexually assaulted inside Parliament House while she worked there. 

READ MORE: Justice Lee finds Bruce Lehrmann raped Brittany Higgins.

Higgins alleged Lehrmann raped her in the office of then Defence Industry Minister Linda Reynolds in the early hours of Saturday March 23, 2019. Lehrmann has always strenuously denied any sexual contact with Higgins. 

Announcing the verdict, Justice Lee said he "entirely rejected" Lehrmann's version of events in the ministerial suite.

"Mr Lehrmann raped Ms Higgins," he said. "I hasten to stress that this is a finding based on the basis of probabilities. As I've explained there's a substantive difference between the criminal standard of proof and the civil standard of proof."

Watch: Lisa Wilkinson reacts to the verdict in the defamation case. Post continues below.

It's a historic victory for the media outlet at the centre of this defamation suit.

But many were left with questions about what happens next. 

What happens now for Bruce Lehrmann?

Professor Rick Sarre is an Emeritus Professor of Law and Criminal Justice for the University of South Australia. He is a past president of the Australian and New Zealand Society of Criminology and a Fellow of the Society. He is well versed in media law, and has written about this defamation case previously for The Conversation.

Speaking with Mamamia, he says Lehrmann will now be "licking his wounds".

"Justice Lee said Lehrmann was an 'unsatisfactory witness', accusing him of 'disorganised lying'. In the end he came out in favour of saying that he thought Lehrmann was completely absent from the truth. Then in order for Network Ten to establish contextual truth, Justice Lee had to establish that in fact it was something in the nature of rape," says Sarre.

"He left the court without any supporters or his lawyer team. He left by himself."

Carol Grimshaw is the Principal Lawyer of Grimshaw Legal, practising in dispute resolution including defamation. Grimshaw is a senior lawyer with 10 years' experience, and approximately 27 years in the public and private legal sectors. Speaking with Mamamia, she says Justice Lee's ruling was "a balanced decision and well founded".

"I don't want to be terribly partisan, I'm a feminist through and through. I'm pleased that a woman, who was inebriated at the time of an incident, had her complaint proven by the court," says Grimshaw.

"Now Lehrmann and his lawyers will sit and pull through the judgement and try to find an appeal avenue."

Can Bruce Lehrmann appeal?

Yes, Lehrmann can appeal.

"Mr Lehrmann has a great deal at risk in this, and I think if he can find an appeal point, he will. It is subjected to cross risks, but he will probably pursue it. But if there was an appeal point to be made, I'm searching for it," notes Grimshaw.

Sarre believes that an appeal is unlikely.

"He [Lehrmann] will be very much out of pocket at the moment. Typically, the winning side gets their costs paid by the losing side. But I think Justice Lee is going to hear submissions on that. My own prediction is the Judge will say that each party bears their own costs," notes Sarre.

"If they do make an order of costs against Lehrmann, for bringing the action in the first place, he will have to pay his multimillion dollar lawyer fees, which of course he's not going to get reimbursed."

There's another factor to consider in this conversation too, says Sarre.

"The fact that no lawyer walked out of the court with him gives you some indication of how much support he has within his legal team. While his legal team ran a pretty formidable case, who knows how much support they had for him running this particular matter. No lawyer would touch an appeal."

Could Bruce Lehrmann be re-charged or retried in relation to the Brittany Higgins case?

Grimshaw says: "I wouldn't want to make the same mistake as Network Ten's legal counsel in making statements that might undermine any further litigation. What I would say is that the general rule is when new evidence is brought to light in criminal proceedings, if the prosecution thinks it's suitable then it can be brought before the court.

"But that is a decision for the prosecution to make."

Sarre agrees, noting it is possible as ultimately the matter was abandoned, not given up. However, Sarre says it's unlikely, arguing, "no prosecutor would touch it with a barge pole".

"Justice Lee pointed out over and over again that this was a civil finding, noting that finding beyond reasonable doubt in a criminal matter would be a bridge too far. The Director of Public Prosecutions would not go down that path now."

How can we legally describe what happened in that office?

"Lehrmann is not a convicted rapist. What we can now say is that a finding has been made against him, in so far as the Judge was satisfied that non-consensual sex had occurred in that office, as such his civil case failed. You can't call him a rapist," says Sarre.

Grimshaw adds: "There has not been a criminal conviction that has found him guilty of the relevant sexual assault.

"The civil standard of proof is not the same as the criminal standard. It's far more rigorous in criminal law. If the matter is returned to the criminal courts, then all the parties will go through a much more rigorous process than what has occurred in the Federal Court. Although in reading Justice Lee's judgement, you can tell he certainly wasn't asleep at the wheel."

Will Bruce Lehrmann have to pay Network Ten's legal fees?

As is the case typically in defamation, the losing party often is in line to pay the winner's legal costs. 

Justice Lee ordered that the parties file submissions on costs by 22 April.

"They have until then to file their arguments about who should pay costs and why," says Grimshaw. "That's a fairly standard process. What will happen is the Judge will then decide who should win on what basis. So there is some risk that Mr Lehrmann will need to pay the respondent's costs. There's then a whole heap of factors that go into the calculus of the amount."

What is the fallout of the case?

Grimshaw tells Mamamia: "It's a hallmark for the advice that lawyers give to clients. Especially in defamation, to be wary of what you sue for because it's usually the action in defamation that causes more damage than what you alleged to have been defamatory."

Sarre adds: "I thought that Justice Lee's summary today — even though it went for two and a half hours — was immaculate in covering every point he had to cover, both factually and legally. And I'm looking forward to further reading the 340 page judgement."

Lehrmann has always maintained his innocence and hasn't been convicted of any crime.

If this has raised any issues for you, or if you just feel like you need to speak to someone, please call 1800 RESPECT (1800 737 732) – the national sexual assault, domestic and family violence counselling service.

Mamamia is a charity partner of RizeUp Australia, a national organisation that helps women, children and families move on after the devastation of domestic and family violence. Their mission is to deliver life-changing and practical support to these families when they need it most. If you would like to support their mission you can donate here. 

Feature Image: AAP.